THE YEAR 2005 TEN COMMANDMENTS CASES BEFORE THE U.S. SUPREME
COURT, FROM KENTUCKY AND TEXAS

The oral arguments

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A brief background of the two cases:

McCreary County v. ACLU of Kentucky (03-1693): This case
originally involved a display of the Ten Commandments by itself, in court
buildings and public schools in the Kentucky counties of McCreary,
Pulaski and Harlan. Later, the Decalogue was supplemented by many Christian
display and a few secular displays.

Van Orden v. Perry (03-1500): This case involves a six-foot tall granite monument
containing the Ten Commandments which was placed on the grounds of the Texas State
Capitol at Austin in 1961 by the Fraternal Order of Eagles. It includes
the Ten Commandments, and various Judeo-Christian religious symbols. No material from
any other religions or from secular sources is included.

Because of the similarity between the two cases, they are being heard
together.

The oral arguments:

The Court heard legal arguments on 2005-MAR-02. According to the Washington
Post, "Opponents of displaying the Ten Commandments [by themselves] on public
property say it amounts to a governmental imposition of monotheism. Proponents
say it is often nothing more than a recognition of the role Judeo-Christian
norms played in Western Civilization and in the founding of the United States
itself."

As we have noted elsewhere in this section:

One factor that does not appear in the media reports is that the Ten
Commandments is actually formed of two parts. The first section is a series
of orders that people must recognize Yahweh as the only deity. These deny
the legitimacy of other religions and a secular lifestyle, and produce some
real First Amendment concerns. The second part is a slightly longer series
of commands forbidding such behaviors as lying, stealing, committing
adultery, murdering people, etc. The first part is a purely religious
document. The latter part is a set of behavioral laws that were combined
with elements of Roman law and facets from other legal systems to produce
systems of laws common to many jurisdictions in the western world.

Some arguments and reactions:

David Friedman, an attorney for the America Civil Liberties Association,
favors the Ten Commandments being displayed only in a cultural display which
includes material from other religions and secular sources. He
said: "An assertion that the Ten Commandments is THE source, THE
foundation of our legal system....that is simply wrapping the Ten
Commandments in the flag, and that's endorsement." 1

Mathew Staver, president of the conservative Christian Liberty
Counsel, said that the Decalogue is: "a universally recognized symbol
of law. A visitor to the United States Supreme Court cannot even enter the
very chambers where argument was heard without coming into contact with the
Ten Commandments. They are engraved at the main entrance on the double
wooden doors, and they also appear on the bronze gates which exit from
either side. Inside the Court, the only written inscription of the numerous
architectural depictions is the Decalogue in Hebrew text. The Ten
Commandments are featured in the central position on this Court's East
Pediment....The Ten Commandments have also influenced our common
vernacular, by giving rise to numerous pithy sayings, like 'The Ten
Commandments of a Good Golf Swing'." 1

Justice Anthony Kennedy, said that "singling out the Ten Commandments
for elimination would show hostility towards religion in violation of the
Establishment Clause." Another time, he commented that: "if an
atheist walks by [a public display], he can avert his eyes." 1

Jay Sekulow, chief counsel for the conservative Christian American
Center for Law and Justice, said: "This is not about endorsing a
specific religion, but recognizing the fact that the Ten Commandments have
played a vital role. No one denies the religious significance the
Commandments hold for many. But that does not render them unconstitutional."
1

Acting U.S. Solicitor General Paul Clement spoke for the Federal
Government in favor of allowing free display of the Ten Commandments in any
format. He said: "The idea of having a fence around the Ten Commandments
to make clear the state has nothing to do with it — I think that is bending
[the Constitution] too far." 1 However, Clement did concede that the 5280 pound monument that former
Chief Justice Moore of Alabama placed in the state Justice building "may
well cross the constitutional line." Moore's monument is very similar to
the Texas monument which is the subject of this court case. Moore's monument
is also considerably shorter and smaller than the Texas monument. 2

Jordan Lorence, an attorney of the conservative Christian Alliance
Defense Fund said: "I am cautiously optimistic that we are going to
get a good result from the U.S. Supreme Court in both these cases, when the
decisions come down in June. The justices expressed a clear consensus in
their questions that they support Ten Commandments monuments, at least in
some format. They believe that the Constitution permits that. We are not
going to lose both cases." 1

Gregg Abbott, Attorney General of Texas said: "This will determine
the extent to which government can acknowledge religion....[it is] a
historical fact that religion has played a role in our lives and society.
And government should not be prohibited from recognizing that. And we should
not take a chisel to the buildings and monuments that exist across the
country." There seem to be attempts under way to cleanse America of its
religious heritage. It is perfectly constitutional to recognize the role
that religion has played in the history and development of this country, and
the Ten Commandments are one way of commemorating the influence that they
have had on the development of law. We cannot turn a blind eye to that
history." 1

The Supreme Court itself contains a number of marble statues in a
cultural display. It includes:

Lawyers on both sides and the Supreme Court justices repeated referred to
the frieze.

Justice Ruth Bader Ginsburg asked: "What if, instead of a six-foot stone
monument on the [Texas] state capitol grounds bearing the words of all 10
commandments -- beginning with 'I am the Lord thy God' -- Texas posted a
version like the one Moses holds in the frieze in which only the last five
are visible?" Erwin Chemerinsky. a Duke University law professor who
opposes the Texas monument, replied: "That...[would be] still
unconstitutional. It would still be the state of Texas expressing the
message that there is a God." He said that the Supreme Court's frieze is
constitutional because it places the commandments in a secular context.
Presumably he was referring to the secular lawgivers who surround the statue
of Moses.

Greg Abbott countered that the Texas monument is also part of a cultural
display. It is part of a "park-like" area dotted with monuments to veterans,
pioneers and other "historical influences" that have shaped Texas.
2